PAULL J.

Introduction

[1] Before the court is the unfortunate and long-standing access dispute between the parents of B., born […] and E., born […].

[2] This matter proceeded to trial over seven days between June 18, 2018 and August 24, 2018.

Issues and Positions of the Parties

[3] There are two main issues to be determined.

[4] The first relates to what, if any, access the children should have with their father and on what terms and conditions. The second involves a determination of ongoing child support and whether there are any arrears in child support and section 7 expenses payable by Mr. Lavallee.

[5] Ms. Moggy does not oppose an order for access but takes the position that any access be at the discretion of the children and subject to their wishes because they have been estranged from their father as a result of his insensitive, rigid, and demanding behaviour around them spending time with his new partner.

[6] Mr. Lavallee takes the position that there should be structured access on alternate weekends and two times during the week, and that there should be counselling to permit him to rebuild his relationship with his children.

[7] He submits that his relationship with his children has been undermined and negatively influenced by Ms. Moggy's actions since he began a relationship with his current wife in the spring of 2016.

[8] OCL on behalf of the children takes the position that the views and preferences of the children that they do not wish to see their father should be respected, and that they should not be forced to participate in counselling in the circumstances.

[9] With respect to child support Ms. Moggy claims arrears in child support and section 7 expenses on the basis that Mr. Lavallee did not disclose his income as required, and refused her requests for contribution to legitimate section 7 expenses.

[10] Mr. Lavallee disputes that there are any arrears in child support or section 7 expenses and states that he has continued to pay the child support and any section 7 expenses they agreed upon. He takes the position that Ms. Moggy did not request financial disclosure or his approval for any section 7 expenses, and she was otherwise content with the arrangements the parties had in place under their separation agreement.

Background

[11] The parties began cohabiting in and around 2000 and were married on June 21, 2003. There is some dispute around when the parties separated but they agree it occurred between late 2009 and early 2010.

[12] They have two children together, and neither has any other children from a prior relationship.

[13] The parties entered into a short Separation Agreement dated September 1, 2009 which they prepared for tax purposes and it included the following:

1. They have lived separate and apart since September 1, 2009.

2. The children remained in the primary care of Ms. Moggy, "who shared custody by/with" Mr. Lavallee, which I took to mean that they agreed to joint custody with primary residence with Ms. Moggy.

3. $1200 per month in child support payable by Mr. Lavallee.

4. $1000 per month in spousal support.

[14] The parties entered into a more detailed Separation Agreement dated January 16, 2014 which included, among other things, the following:

1. Joint custody with primary residence to remain with Ms. Moggy.

2. A fixed access schedule to work around Mr. Lavallee's shift work at Toyota Manufacturing to include Monday, Tuesday, and Wednesday from 4:30 PM to 7:30 PM when he worked the day shift, and every weekend from Saturday at 12 to Sunday at 12, and such other access as agreed.

3. The parties agreed that they are each, "fit and proper persons to have joint responsibility for the care" of the children.

4. $1200 in child support pursuant to the Child Support Guidelines, and a proportional sharing of special and extraordinary expenses.

5. The parties agreed to provide annual disclosure of their income tax returns and Notices of Assessment.

6. Spousal support of $1000 a month to continue until June 1, 2014.

[15] The current difficulties between the parties came to a head in early 2016 when Mr. Lavallee began his relationship with his current partner and wife, Emma Racey. Throughout the late spring and early summer of 2016 the children (B. who turned 12 that year, and E. who was 9 at the time) became increasingly resistant to access with their father to the point that it stopped completely by August 2016.

[16] The current proceeding was commenced by Mr. Lavallee by way of an application dated July 13, 2016 where his only claim was access.

[17] In her answer dated August 29, 2016 Ms. Moggy disputed the access claim and sought to adjust child support and section 7 expenses on the basis of the financial disclosure that was not provided as required since the signing of the Separation Agreement.

[18] An order was made requesting the involvement of the Office of the Children's Lawyer and counsel was appointed. A clinical investigator, Steven Didham, assisted OCL counsel and provided evidence at trial.

[19] Mr. Lavallee testified on his own behalf, as did his wife Ms. Racey, his brother Lance Lavallee, and two friends from his place of work, Shawn Coughlin and Norm Proctor. Ms. Moggy testified on her own behalf.

Evidence

[20] Mr. Lavallee testified that prior to his beginning a relationship with Ms. Racey he had frequent access with his children several times a week and only missed occasional visits when he had work or had other commitments. Issues with his access began after Ms. Moggy and the children became aware he was in a relationship with Ms. Racey.

[21] Ms. Moggy testified that there had been long-standing concerns with access which became critical when Mr. Lavallee began a relationship with his current partner. She testified to long-term concerns with Mr. Lavallee's mental health including that she believed he was bipolar, had depression and "racing thoughts", and that this went back to the time when they separated in 2009/2010.

[22] Ms. Moggy testified that the separation was instigated in large part because Mr. Lavallee had an affair with her younger sister who was approximately 18 at the time and was living in their home. Mr. Lavallee acknowledge the affair but denied any mental health issues other than the situational stressors that were present at the time of separation. He testified that he saw a doctor at the time and was prescribed medication which he discontinued using shortly after because of the side effects.

[23] Ms. Moggy also testified that in the spring of 2016 Mr. Lavallee was actively pursuing her in an effort to reconcile. With respect to this she testified as follows:

1. In the early part of 2016 Mr. Lavallee was around her home more frequently. This resulted in him having more contact with the children which made them happy.

2. He was not sleeping over and they were not in an intimate relationship at the time.

3. She purchased her home in the spring of 2016 and he lent her $1000 and assisted her in other ways.

4. Mr. Lavallee made repeated references to her about reconciling. On April 19, 2016 Mr. Lavallee asked her about getting back together and stated explicitly that he wanted her back. This occurred in her kitchen when he attended her home and brought coffees.

5. She responded that she did not want a relationship but did want to co-parent with him.

6. Mr. Lavallee responded to this by indicating that he had just wanted to check in and make sure before, "going all in" with the woman he was seeing.

7. She responded with, "Okay cool". Up to that point she had no knowledge of Mr. Lavallee seeing anyone else.

[24] Mr. Lavallee denied he wanted to reconcile with Ms. Moggy or that he ever spoke to her about wanting to. His view was that Ms. Moggy was jealous or resentful of his new relationship and negatively influenced the children against him and his new partner.

[25] Numerous text message exchanges were filed in evidence at trial. One exchange from late June 2016 from Ms. Moggy to Mr. Lavallee (filed as Exhibit 16) states in part the following:

Ms. Moggy: "... The only person sabatoshing [sic] by lying to everyone like you were with her while trying to get with me? Past behaviour proves the future behaviour.

Your kids are seeing all of the lying and playing telling them you want your family back while seeing another woman surprise surprise but let's blame me for not being able to control yourself from lying and manipulating everyone.

B. said you told him you have been seeing her since February Jan? Glad I trusted my gut on that one I'm way too good and deserve so much better than some guy who lies to me and my kids they deserve so much better…[sic]"

[26] In cross-examination this text was put to Mr. Lavallee on the basis that it clearly implies that it was Ms. Moggy's view that Mr. Lavallee had been trying to reconcile. Mr. Lavallee denied he was, and stated that if she interpreted the situation incorrectly it is not his fault.

[27] Mr. Lavallee testified that Ms. Moggy attempted to dictate to him how he was to spend time with the children, specifically that he should have one-to-one time with them and not with his girlfriend and her children.

[28] He testified he tried to accommodate by attempting to maintain the Monday to Wednesday visits as one-to-one but that the weekend visits would be exercised as a family with his new partner, who he was formally living with by August 2016. He no longer had his own apartment by that time and would have had nowhere else to exercise overnight access.

[29] He denied that he was in any way rigid or insensitive to his children regarding his new partner, and felt the issue of spending alone time only became an issue because of Ms. Moggy's negative influence.

[30] Mr. Lavallee's partner, Ms. Racey testified as follows:

1. She has three children aged 11, 8, and 5.

2. She met Mr. Lavallee on February 25, 2016 and felt he was kind and approachable. He was introduced initially as a friend to her children three weeks later and she has observed him to have at all times been loving and kind, and that her children have embraced him without hesitation.

3. She and Mr. Lavallee were married in the fall of 2016 by eloping to Cuba. No one else was at their wedding, including any of her own children.

4. She has a positive relationship with the fathers of her other children and they have a flexible arrangement with no court orders in place.

5. She originally wanted to meet Ms. Moggy as she had met her ex-partners' spouses and felt it was important in maintaining a positive relationship.

6. She has never met Ms. Moggy, however, she received one contact from her through an online message shortly after she met Mr. Lavallee that was highly critical of Mr. Lavallee and referenced the affair he had with her sister. She was disappointed by the message and did not respond.

7. With respect to the allegations that Mr. Lavallee was actively trying to reconcile with Ms. Moggy she stated in cross-examination by Mr. Battin that she was aware that was the case up to and maybe slightly after she met Mr. Lavallee. She believed it was not a romantic relationship and that not long after they met Mr. Lavallee made the choice to be with her and not to pursue a relationship with Ms. Moggy.

[31] Norman Proctor testified as follows:

1. He has known Mr. Lavallee for 4 years and also works at Toyota Manufacturing.

2. He lived around the corner from Ms. Moggy's home up to March 2016 when he believed she moved out of the neighbourhood.

3. Prior to her move in March 2016 he would notice that Mr. Lavallee was at Ms. Moggy's home about four or five times a week after 4 PM when he was off work, and on some Saturday mornings. He knew this because he recognized Mr. Lavallee's car.

4. He has never met Ms. Moggy.

[32] Lance Lavallee, the brother of Mr. Lavallee, testified as follows:

1. He has a good relationship with his brother and has known Ms. Moggy for approximately 18 years.

2. He felt that he had an amicable relationship with Ms. Moggy and that his children have a good relationship with B. and E. Mr. Lavallee would usually bring them over for family events.

3. He has seen E. and B. a couple of times since the summer of 2016. The last was an overnight visit over the Christmas holidays in 2017. These visits were arranged by his mother directly with Ms. Moggy.

4. Prior to the spring of 2016 he had seen Mr. Lavallee and the children regularly at family visits. He always observed Mr. Lavallee as an active and positive parent, and that his children enjoyed spending time with their father and their extended family.

5. Prior to the spring of 2016 he had witnessed Mr. Lavallee and Ms. Moggy communicate and saw them together at family functions a number of times over the years. He only observed respectful interactions by both of them and felt that they got along fine.

[33] Steven Didham, the clinical investigator for the OCL, testified as follows:

1. He has a Masters in social work and worked in child protection from 2001 and as a clinical investigator for the Office of the Children's Lawyer since 2008.

2. He has interviewed children regularly as a clinical investigator and as a protection worker over his career and has received training for conducting these interviews.

3. His role in this case was as a clinical assist and was not to complete a written report or give recommendations. In cross-examination when asked if "best interests" was part of his role he stated that his role was to ascertain and present the children's views and preferences.

4. He met separately with the parents in September 2017.

5. Mr. Lavallee's main concern was that he felt Ms. Moggy was influencing the children into not wanting to spend time with him and his new partner.

6. Ms. Moggy told him the relationship between Mr. Lavallee and the children had deteriorated over a period of time starting with the separation in 2000 which resulted from Mr. Lavallee's affair with her younger sister. Ms. Moggy expressed to Mr. Didham a desire to help repair the relationship between the children and Mr. Lavallee, and that the children wanted alone time with their father. When this need of the children was not met they started to resist access. She also stated that the children were negatively impacted when Mr. Lavallee cancelled visits.

7. He, along with Ms. Gordon, met independently with B. 5 times and E. 6 times between October 10, 2017 and June 8, 2018.

8. He felt B. presented as thoughtful and intelligent, had clear views and thoughts, and took time to think about a question before answering it. He had no concerns that B. did not understand the questions or that he was not able to express himself.

9. In the interviews with B. prior to the disclosure meeting on January 23, 2018, B. was clear he was not pleased about being repeatedly interviewed.

10. B. stated that his father needed to work on himself and that he felt his father placed his relationship with his current partner over him and E., and he felt "ditched" by his dad.

11. B. wants an apology from his father for himself, E., and their mother for not putting them first.

12. B. stated that he had these feelings for a while. B.'s views and preferences were both strongly held and consistent.

13. When questioned during his evidence in chief about whether B. had been influenced, Mr. Didham stated that B. expressed that his feelings were his own and not his mother's.

14. Initially B. expressed that if his father did apologize he would, "think about it".

15. During E.'s first interviews before the disclosure meeting Mr. Didham found her to be both expressive and consistent about her feelings.

16. E. also wanted an apology from her father for herself, B., and her mother about how things had deteriorated. An apology was very important to her.

17. E. felt hurt that her father had chosen his new girlfriend and her family over them.

18. He asked her if she felt influenced by either of her parents and she indicated that she did not.

19. At that time (late 2017) E. was not prepared to attend counselling, although she apparently had earlier, because she stated her father needs to work on himself and she had too many activities.

[34] The parties attended the OCL disclosure meeting on January 23, 2018 and Mr. Didham explained that the issue of an apology was vitally important to both children and that it may be a way to begin repairing the relationship between Mr. Lavallee and the children.

[35] Mr. Didham testified that both parents agreed and wanted to repair the relationship, and both acknowledged the conflict between them may have had an impact on the children.

[36] The parties developed a plan to move forward for an "apology meeting" which he and Ms. Gordon would facilitate. He felt that both parents were supportive of the idea.

[37] On February 12, 2018 he and Ms. Gordon met with Mr. Lavallee to formulate a plan for the meeting. Given that Mr. Lavallee had not seen the children since the summer of 2016, he felt the meeting would be only five minutes long and consist of a carefully worded apology to the children that would consist of Mr. Lavallee saying sorry for hurting them and for not putting them first, and that he wants to repair his relationship with them. He felt Mr. Lavallee was on board with the planning for the meeting and the wording of the apology, which he assisted with.

[38] Later in February 2018 he and Ms. Gordon met independently with the children. B. was clear he was not agreeable to attending the meeting. E. was receptive and agreeable to attending a meeting where her father would apologize.

[39] In preparation for the meeting, Ms. Gordon emailed Mr. Lavallee on February 20, 2018 (filed as Exhibit 44) confirming that:

"We've now met with both B. and E. to canvass their wishes about our proposed meeting with you and them. E. is prepared to come to the meeting and hear your apology, B. is not, unfortunately."

[40] The email then indicates March 6, 2018 for the meeting. In his email responses Mr. Lavallee only queried the date, and then agreed to March 6, 2018 for the meeting.

[41] Mr. Didham and Ms. Gordon facilitated and attended the meeting between Mr. Lavallee and E. on March 6, 2018. Mr. Didham checked in with Mr. Lavallee before the meeting and he confirmed he was ready to proceed.

[42] When E. was brought into the room Mr. Lavallee began reading from his notebook but it was not the apology that had been planned. He started by saying that he knew E. was expecting an apology from him, but he was not going to as he had nothing to apologize for.

[43] Ms. Gordon escorted E. out of the room while Mr. Lavallee still read from his notebook and the meeting ended. Mr. Didham testified he spoke to Mr. Lavallee after about why he did not follow through and Mr. Lavallee repeated he had nothing to apologize for. He and Ms. Gordon spoke to E. after the meeting during which she was distraught and had tears in her eyes throughout, and expressing that she was upset, angry, and very disappointed.

[44] Mr. Didham and Ms. Gordon did a follow-up meeting with the children on March 27, 2018. B. expressed the same views and preferences about not wanting to see his father as he had previously, and was not interested in being there to discuss it further. B. was aware of what happened at the meeting with E. and felt that she had been set up by their father by a "fake apology".

[45] E. expressed that she was sad and angry after the meeting but not completely surprised that it went the way it did. She did not know at that point what kind of relationship she wanted with her father but was clear that she did not want a schedule for access. She also wanted to know why her father did what he did and not what was planned. E. was upset and teary during this discussion and stated she did not understand why he would choose another family.

[46] E. had questions for her father which OCL counsel summarized in an email to Mr. Lavallee which focused on why he did not apologize, why he would choose another family, and why he would want to force her to visit with him.

[47] The written response by Mr. Lavallee to E.'s questions was filed as Exhibit 6. In it he stated to E., among other things, that:

"This was a chance to reconcile our relationship as it was a chance for us to speak to one and other. Steve and Susan's best suggestion was that I make an apology where I take all the blame for all that has transpired. They were well aware of my lack of enthusiasm of what they suggested and hence suggested I lie to you and tell you something I don't agree with. I was very cautious of the words I used, and did not tell them I was going to apologize.

Their lack of interpretation and misdirection of what was actually said is not my fault. They went as far to write a script for me to read, however, the dialogue was open for my own choosing.

Steve and Susan were expecting something they shouldn't have, and that was to hear what they wanted to hear rather than what my daughter needed to hear…"

"I have not chosen another family over you. I remarried and became a stepfather. That does not mean I love them any more than I love you. I will always be your father and will always love you more than you can possibly know.

You're a smart girl, and you know that blended families are a common fact of life. You've already been part of one but refused to acknowledge the fact that I am part of one and embrace that blended families can be a beautiful wonderful thing…"

[48] He also reiterated that he had nothing to apologize for, and that he did not want to force her to see him but rather to encourage her to have a relationship with him.

[49] Mr. Didham testified that he never told Mr. Lavallee to lie and that the apology was meant to be for his part in how things had gotten so bad and for not being more sensitive in putting the children's needs first. He further testified that Mr. Lavallee had told him he would apologize and never said he would not at the planning meeting, in any subsequent communications with Ms. Gordon, or when he met him right before the meeting with E.

[50] On May 8, 2018 Mr. Didham and Ms. Gordon met with E. to review the letter from her father in response to her questions. According to Mr. Didham, E. reacted to the letter from her father by being upset and stating that it did not make sense to her, and that she felt it was not right or fair.

[51] The final OCL interview with the children took place on June 5, 2018. At that time B. expressed the following:

1. He remained consistent and felt strongly that he did not want to have a relationship with his father at that time for what he did to E. and their mother.

2. What happened to E. at the apology meeting only made his feelings stronger.

3. He did not want visits but if there were he wanted to have a say if they occurred.

[52] At that time E. expressed the following:

1. She remained consistent that she did not want to be forced to see her father, did not want an access schedule, and only wants to see her father if she wanted to.

2. She wished that he would have followed through with the apology.

[53] Overall, Mr. Didham testified that the children's views and preferences have remained consistent about their feelings regarding their father and that they have become more adamant over time, particularly after the apology meeting, which he felt was an important and missed opportunity for Mr. Lavallee to try to repair his relationship with the children.

[54] During cross-examination by Mr. Lavallee, Mr. Didham was asked if he was aware that the children had been exposed to verbal confrontations and exposed to text messaging between the parents. Mr. Didham indicated he was aware of one occasion the children were exposed to conflict between the parents but not the extent of it as both parents acknowledged it at the disclosure meeting.

[55] Mr. Didham was further asked if he was aware of text messages between the parties which suggested the children were exposed to the adult conflict, and he responded that he was aware of one text message exchange regarding E.'s competitive dance where E. became aware of it and had made negative comments through text message to her father. He testified that Ms. Moggy had acknowledged to him that E. became aware of the dance issue and that it was "not ideal", and that she had taken steps to avoid this by ceasing communicating with Mr. Lavallee.

[56] With respect to the independence of the children's views and preferences being impacted by the conflict he stated that they had been impacted by the family breakup. The OCL took the position that the children's views and preferences were the result of their father's behaviours and were not influenced by their mother.

[57] Mr. Lavallee testified that he felt the involvement of the OCL has only made matters worse and he disputed the version of events regarding the apology meeting described by Mr. Didham. With respect to that meeting Mr. Lavallee testified as follows:

1. He disagreed with the idea that he apologize to the children and was reluctant to do it.

2. The meeting was presented as a chance at reconciliation, was not discussed as an apology meeting, and that he never agreed that he would apologize.

3. He knew the OCL wanted him to apologize, but believed that what he said was ultimately his choice.

[58] Numerous text messages between the parents, and between Mr. Lavallee and the children were filed in evidence.

[59] Throughout the spring and summer of 2016 the parents were regularly texting with Ms. Moggy making repeated references to the children feeling strongly about wanting alone time with Mr. Lavallee, and their growing resistance to access and to spending time with Mr. Lavallee's partner and her family.

[60] In a text message in May 2016 to Mr. Lavallee (filed as Exhibit 11), Ms. Moggy was raising the issue of the children feeling strongly about having alone time with him, and that he was not appreciating this. The text also stated:

"…Listen your the one and only you have made the choice to hook up with someone and demand that they accept not ever getting there sat night alone with their dad after they point lol!! Not me you made the choice to abandon your family by thinking it was a good idea to get into a relationship and have affair with a little girl we were raising which by the way she has mentioned you took advantage of all she has to say is that she was 17 and game over you made that choice those are the scars you chose to leave on our kids and not deal with them and then tell them to get over it not me I am sick of it and so are they take accountability for your own choices…[sic]"

[61] In a text message in July 2016 to Mr. Lavallee (filed as exhibit 19), Ms. Moggy stated the following:

"…Then tried to trip their mother up by making her take money from providing from them to pay for a lawyer to change there schedule to accommodate a woman's schedule who doesn't even work lmao!!! Disregarding the fact that the mother of your children is working to provide for our children I think her and her kids schedule is a little more important… The final straw for your kids losing respect for you was the court papers.[sic]"

[62] In a text exchange on June 23, 2016 (filed as Exhibit 10) Ms. Moggy responded as follows after being advised that she was no longer on Mr. Lavallee's medical benefits through work:

Mr. Lavallee: "yes I did, that was the last one btw, you're off the benefits"

Ms. Moggy: "oh okay I will let her know

I knew it was the matter of time

I'm sure your girlfriend will appreciate getting her teeth cleaned lol

enjoy your new family cause you've lost the respect of yours

Ps I will be calling the gov tomorrow to let them know you're residing there E. let me know

she must suck dick real good lol' career choice I see enjoy can't wait to see all of this blow up in your face

Night [smiley face imoge]

Ps I got your Father's Day card cause I earned it cause I don't put getting my dick sucked before my kids/ vagina. [sic]"

[picture of a homemade card saying "Worlds Best Dad"]

Mr. Lavallee: "I want to take the kids for counselling with me to work on things together, but I need your consent for E. because she's under 12

(will you sign it for me?)

As well, the counsellor suggested seeing if you could make it to be part of it and thought it would help. [sic]"

Ms. Moggy: "I have done counselling with B. already and we tried to get you involved in that and keep you in the loop but you disregarded everything everyone's feelings unfortunately I won't have time all summer working 12 hour days and

Camping trips for kids on weekends getting groceries

Don't know when I will find time to cut grass and get everything else done… [sic]"

[63] In a text message in August, 2016 (filed as Exhibit 21) referencing Mr. Lavallee not contributing to section 7 expenses with Mr. Lavallee responding he had not consented, Ms. Moggy stated that she had paid for the memberships for the swimming and he was to pay for the dance. The exchange then included the following:

Ms. Moggy: "…You had money to blow all summer on another family so man up and support your kids other than basic child support.

Tired of them not being able to do anything while you wheel in over 90 grand a year pathetic should try to man up like your bros and crest opportunity for your kids

Plus not only doing that but tripping up their mom who works 12 hour days to shell out money got a lawyer

Pretty pathetic while your girlfriend sits on her ass unemployed and you support her over your kids…[sic]"

[64] Numerous text message exchanges between Mr. Lavallee and the children were filed. In April/May 2016 Mr. Lavallee and B. had a lengthy exchange about access (filed as Exhibit 41) which included the following after Mr. Lavallee advised he would be attending the next day for access:

Mr. Lavallee: "you don't come with me tonight anyway silly. It's Wednesday. I'll you tomorrow"

B.: Never fricken message me again because we are not your damn kids they are is that so hard don't ever say you love us because you dot so ya the end and to day mommy had to watch a c hole kid and it was hell and she is busting her butt off to have a home in food and what is your girlfriend doing… Just sitting on her but doing nothing but watching her kids and this is me and yes this my words so screw you step up and help mommy once again we are not your biological kids so F*** you!!!!!! [sic]"

[several angry and tearful imogees]

Mr. Lavallee: "what reason are you lashing out at me for? Because your mom had a bad day? How is that my problem? And second, if you want to have a meaningful respectful relationship with someone, that's no way to talk to them! Especially one of your parents!"

B.: "Mommy did not have a bad day shut up and no I'm not lashing out you have not been there for us when mommy needed help

or spend time with us at alllll

and this is not just random it's been inside for a long time so ya [sic]"

[65] With respect to this exchange Mr. Lavallee testified that he was shocked and had never heard this sort of language before from B.

[66] In a further text message exchange (filed as Exhibit 26) between Mr. Lavallee and B. over June 3-4, 2016, B. stated the following:

B.: "F***you E. wants to spend a god damn night with you hy crap is that so damn hard

and your ignoring her feelings [sic]"

[67] There were also a number of texts exchanges between Mr. Lavallee and E. during this period. In a text message from E. to her father in March 2016 (filed as Exhibit 43, page 168) she stated the following:

E.: Hey I saw your Facebook account with some girl named Emma Racey Facebook show that you guys were in a relationship together so if that's why you have been bailing on me and B. you should have told us sooner and you have been on your phone a lot have you been texting her? And if that's the reason why you have been rushing out after you come to visit us for. well you kept it from me and B. and that's not cool I found this out by googling up your face book account and then I saw you and this girl. And I saw you have changed your phone screen to you and her in bed instead of me and B. and mommy on Mother's Day by the water fall [sic] [followed by upset imogees]."

[68] On June 24, 2016 E. spoke of wanting alone time with her father and spending it at his apartment which he no longer had. The exchange (filed at Exhibit 27) included the following:

Mr. Lavallee: "E. Where are we supposed to go, I live with Emma [Racey] now, my apartment is empty, am I supposed to rent a hotel every weekend? Is it going to be a battle every weekend? No it's not. You knew about last weekend and the weekend before yo were sick, that's not my fault I told you that would be the last time we get to stay in the apartment and it was

Can you get B. to talk to me

if you guys are in bed now, I just want you to know I love you more than anything and hope you have a good night and day at school tomorrow" [four hearts]

E.: "Don't act like you did me a favour by coming here for my recital you only had to drive here from Toronto cause you spent our day and night with your girlfriend

if you can't figure out how to depend our Saturday alone with us then yes I guess you won't see B. and me any more hope you have a good weekend with your new family I'm going to have fun with mom [sic]"

[69] In a further text exchange which occurred in the same time period (filed as Exhibit 29) Mr. Lavallee invited the children to his brothers home to visit with their cousins and E. responded as follows:

E.: "If you mean by us you and your girlfriend then I'm sorry were not coming we have already told you that we are not going near your girlfriend I don't care if you're bribing us with our cousins to go but it's not happening and you know that if you unless you're not spending alone time with us then we are not coming…[sic]"

[70] In early August 2016 the following text exchanges (filed as Exhibits 30, 31, and 33) occurred between Mr. Lavallee and E.

Mr. Lavallee: "E. I want you to know I stopped to pick you up tonight but your mom said you were at a friends, I didn't hear what time you would be back so I couldn't wait around all night. I really wanted to see you and just wanted you to know that I'll be there again tomorrow at 5 Goodnight sweetie. I love you".

E: "I was at a friends all day and for supper and I'm not going tomorrow eather because I don't want to here you yaping about you and your girlfriend o and since you made mommy pay for a loyer you will be paying for me and B.'s back to school shopping and cloths because the money you made…[sic]" [the remainder of the text being cut off]

Mr. Lavallee: "… All I want is to spend time with my kids and enjoy each other's company".

E: "Maby you should have did that before you made a new family o and I saw a picture of you and your girlfriend's kids at the beach hope I guess you jade more fun with her kids so enjoy [sic]" [sad and angry imogees]

Mr. Lavallee: "E. I'm not going to not do things because you guys choose not to come and join in. If you're feeling sorry for yourself because you're not in the picture, I can't help that. You had a choice and opportunity to be there".

E.: "She has to pay for a lawyer to take care of the papers you sent her a takeoff work you did that [sic]".

"You're an idiot don't talk to me anymore that's not shoots you have a way around where trying to do that [sic]"

Mr. Lavallee: "Calling me names, swearing at me, refusing to come with me, and setting conditions on how we spend time together is what you call trying? I think you need to re-evaluate your efforts sweetheart [sic]."

[71] Mr. Lavallee testified that in or around August 2016 the communication with the children became nonexistent. He testified he showed up at the home with cards and gifts without success. He has no current ability to communicate with Ms. Moggy or the children.

[72] Ms. Moggy testified in chief that the Saturday overnight visits occurred with the occasional cancellation until they ended in the spring of 2016. Up to that point she testified that E. was excited about visits and B. was a little withdrawn about them. She testified that this led her to explore counselling for B. in early 2016.

[73] In cross-examination by Mr. Lavallee she stated that she took B. to the counsellor regarding his feelings for his father and that he was not receptive to it. This counselling took place through Homewood Health over 6 sessions between February 3, 2016 and June 20, 2016.

[74] In 2012 B. had been assessed by CPRI to address a query of PDD (pervasive developmental disorder) and obsessive-compulsive traits. The report filed in evidence concluded that B. did not meet the criteria to be referred to the ASD Screening Clinic, however, recommended Ms. Moggy access services for B. at OECYC, Woodstock General Hospital, Child and Youth Mental Health Program, and seek referral to a community psychiatrist. No evidence was provided with respect to follow through with any of these recommendations other than the counselling through Homewood Health.

[75] The issue of whether Mr. Lavallee was actively attempting to reconcile with Ms. Moggy and spending a lot more time in her home with the children in the spring of 2016, is only relevant to the extent that it may provide context to the parties and children's actions at the time.

[76] I accept the testimony of Ms. Moggy with respect to the issue of Mr. Lavallee pursuing reconciliation and her account on this particular point of what happened up to and including April 19, 2016.

[77] Her testimony on this point was clear, convincing, and cogent. Her account was also confirmed by the testimony of Ms. Racey who, in cross-examination, indicated she was aware of Mr. Lavallee's attempts to reconcile up to and maybe shortly after she met Mr. Lavallee, and that not long after that Mr. Lavallee made a choice to be with her and to not pursue Ms. Moggy.

[78] Ms. Moggy's account of the circumstances was also confirmed to some extent by Mr. Lavallee's own witness Mr. Proctor who testified that in early 2016 he had seen Mr. Lavallee's car parked at her home several times a week.

[79] By contrast, Mr. Lavallee's account that he denied ever pursuing her or asking her to reconcile specifically on April 19, 2016 is not inherently believable in my view, particularly in the context of Mr. Proctor and Ms. Racey's testimony, and the texts between the parents where Ms. Moggy was making clear reference to his efforts at reconciliation. There is no evidence by way of Mr. Lavallee's responses to these texts that indicated he disputed or questioned her characterization. Mr. Lavallee denied he was attempting to reconcile but did not deny he was at Ms. Moggy's home frequently, or that his car was seen parked there 4 or 5 times a week.

[80] With respect to the meeting the OCL set up with E. and Mr. Lavallee on March 6, 2018 I accept the testimony of Mr. Didham. His testimony on this point was clear, convincing, and cogent. His outline of events was inherently believable in my view. He is a professional third-party with significant experience in child protection and with the OCL, and has no motive to lie.

[81] In the context of the children's strong desire for an apology, it would have been reasonable to expect that he and Ms. Gordon would have discussed the meeting specifically as an apology meeting. I do not accept Mr. Lavallee's testimony that the meeting was not presented as an apology meeting or that Mr. Didham wanted him to lie.

[82] The email from Ms. Gordon to Mr. Lavallee making arrangements for the meeting makes specific reference to an apology, and the statement Mr. Lavallee ultimately did try to read to E. (filed as Exhibit 7) begins with:

"I know you think I'm here to apologize for everything that's gone wrong and say that everything is my fault. None of us should be sorry for anything other than the fact that we are here today.

I don't feel there is anything I need to apologize for as I have done nothing wrong…"

[83] The meeting was clearly arranged around the concept of an apology. Mr. Lavallee was aware of this and led the parties to believe he had agreed to the meeting on those terms.

Law and Analysis

Custody and Access

[84] Ultimately, the court must decide what access, if any, is in the children's best interests and consider the factors set out in subsection 24 (2) of the Children's Law Reform Act in reaching this decision. This subsection reads as follows:

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[85] No one factor in the statutory definition of a child's best interests is given statutory preeminence. The court should consider the level of hostility and the extent to which that hostility may undermine the child's stability. Wilson v. Wilson, 2015 ONSC 479.

[86] Absent concern about such issues as abuse, each parent should be expected to support the children's relationship with the other parent, and to take steps to ensure that the children have a positive attitude about that relationship.

[87] A custodial parent must not just accommodate access, they must facilitate it. Scrivo v. Scrivo, 2012 ONSC 2727; Tran v. Chen, 2012 ONSC 3994.

[88] The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz, [1996] 2 S.C.R. 27. This even applies when the child is reluctant to see a parent. Maximum contact principle also applies under provincial cases, even though not set out in CLRA. Cavannah v. Johne, [2008] O.J. No. 5027 (SCJ).

[89] However, the Court has to view what is in the best interests of the child, not the parents. The "maximum contact" principle, as it is called, is mandatory, but not absolute. The maximum contact principle only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.; Casselman v. Noonan, 2017 ONSC 3415.

Analysis

[90] For reasons that will follow, the evidence establishes that neither party is entirely blameless in this unfortunate matter, and both have behaved in ways that have contributed to the children's current estrangement from their father. The more difficult question is what, if anything, can be done about it given the children's entrenched views and each parents' strongly held belief in the other's complete blameworthiness.

[91] I accept that Mr. Lavallee was a loving parent, and generally had positive and regular access and was able to co-parent with Ms. Moggy up to the spring of 2016. I do not accept Ms. Moggy's position that there were long term and serious issues with access and Mr. Lavallee's mental health and behaviour that, as she stated in her direct evidence, left her presently concerned for her and the children's safety.

[92] There is no evidence that Mr. Lavallee has ever been a physical risk to his children and the allegations regarding his mental health were not substantiated by the evidence. Indeed there was no independent evidence about Mr. Lavallee's mental health. There was only Ms. Moggy's concerns and allegations regarding appointments Mr. Lavallee had with a doctor around the time of separation that she acknowledged she was not present for.

[93] Mr. Lavallee acknowledged situational stressors at the time of separation and that he attended a doctor and was given medication which he discontinued because of the side effects. There is no other evidence on this issue, and on the basis of what is before the court a finding that Mr. Lavallee has significant and untreated mental health issues is not supported.

[94] Further, in spite of Ms. Moggy alleging serious mental health concerns at separation that she states are currently present, the following additional factors undermine this assertion:

1. In the first Separation Agreement at the time of separation in 2009/2010 she agreed to joint custody with regular access.

2. She continued to support joint custody with access in the second Separation Agreement in 2014 and specifically agreed to a term that each of them were, "fit and proper persons to have joint responsibility for the care" of the children. She did not take the position at trial that this agreement was at the time inappropriate or entered into by her involuntarily.

3. She specifically testified that on April 19, 2016, when she refused his request to reconcile, that she told him she did not want a relationship with him but wanted to co-parent. She further testified that during that time period Mr. Lavallee was spending a significant amount of time at her home and that the children enjoyed this. If she had long term concerns for his mental health it would not of been reasonable that she permitted him in her home or around the children as much as she did.

4. The counselling records from Homewood Health for B., which will be discussed further below, were filed in evidence. At the first session on February 3, 2016 which Ms. Moggy attended the records indicated that, "Ms. Moggy was married for five years but has been divorced from her husband for five years. She reports that they are able to co-parent effectively." The record goes on to state that Ms. Moggy reported that compulsive behaviours run on her side of the family and mental health issues were also present in her mother. She acknowledged an ability to co-parent and made no mention of her concerns for Mr. Lavallee's mental health which would have been reasonable considering her stated level of concern. In her testimony she did not dispute the content of any of the Homewood Health records.

5. In the present proceeding she is not seeking to vary the parties' agreement for joint custody.

[95] I also accept the evidence of Lance Lavallee with respect to his observations of the parents. His evidence was clear, convincing, and cogent. He was not negative in his comments towards Ms. Moggy, and stated that from his observations the parents communicated respectfully and generally got along. This is consistent with the counselling record that outlines that Ms. Moggy was of the view that the parties could co-parent effectively.

[96] In spite of finding that Mr. Lavallee had a positive relationship with the children and a period of effective co-parenting with Ms. Moggy, he has and continues to make numerous poor choices which have significantly contributed to the children's current estrangement from him.

[97] Firstly, the children found out about their father's new relationship on Facebook. The text from E. to her father in March 2016 clearly indicates that she was upset about this. It is understandable that E., who was nine at the time, would feel hurt by this, particularly in the context that around that time Mr. Lavallee had been spending more time with them at Ms. Moggy's home which, according to Ms. Moggy, the children both enjoyed.

[98] Secondly, Mr. Lavallee has taken a rigid and insensitive approach with respect to his children which has not assisted. Mr. Lavallee was clear in his testimony that he took any comment from Ms. Moggy and the children regarding spending one-to-one time with the children as attempts to dictate how he spends his time.

[99] The text communications between Mr. Lavallee and the children illustrate the children's hurt feelings and growing frustration, and Mr. Lavallee's failure to appreciate how strongly they felt, or that his own approach was not helping. Saying to E. in response to her clear feelings of hurt and rejection when she saw the pictures of Mr. Lavallee at the beach with his stepchildren that, "If you're feeling sorry for yourself because you're not in the picture, I can't help that. You had a choice and opportunity to be there", was not appropriate and would have only made E. feel worse.

[100] While I accept that Mr. Lavallee was sincerely attempting to communicate appropriately with the children, the manner in which he chose to communicate with them only reinforced their view that he was not understanding or acknowledging their feelings.

[101] The communications between Mr. Lavallee and the children show their upset and anger growing over time to the point that communication stopped altogether. More sensitivity and flexibility on his part may have gone a long way in preventing the situation from getting so far out of hand. Instead of doing this, Mr. Lavallee has and continues to maintain the same approach which has proved so ineffective in trying to get his relationship with his children back on track.

[102] Certainly the most poignant example of Mr. Lavallee's rigidity and poor decision-making is the issue of the apology meeting. The meeting was arranged for Mr. Lavallee to accept responsibility for his part in this matter, and an opportunity to take the first step at reconciliation.

[103] If Mr. Lavallee was not prepared to apologize, or felt another approach was warranted it should have been discussed at the disclosure meeting, the planning meeting on February 12, 2018, in a subsequent email, or when Mr. Didham met him right before meeting with E.

[104] Unfortunately Mr. Lavallee did not do this and instead was content to permit the OCL and more importantly E. to believe the meeting was for a particular purpose when he clearly had no intention of following through.

[105] It was an important missed opportunity by Mr. Lavallee, particularly since E. wanted to be there. His approach of essentially "blind siding" E. when he knew what she was expecting was not only ill-advised but showed particularly poor judgment. The consequences of his choices were entirely predictable, and E. was extremely hurt and upset.

[106] His written response to her questions after this meeting was equally unhelpful. He stated he knew it was meant to be an apology and that, "I was very cautious of the words I used, and did not tell them I was going to apologize", and he blamed the OCL for misinterpreting his position. His approach is strongly suggestive that he was dishonest and manipulative during the discussions and planning for the meeting.

[107] Mr. Lavallee maintained his position throughout the trial that he had nothing to apologize for and that in hindsight he would still not have done anything differently. If he maintains his current approach, this lack of insight into his own behaviour will be a major obstacle in ever reestablishing a relationship with his children.

[108] There is also compelling evidence in my view that Ms. Moggy has also behaved in ways which have negatively impacted the children's relationship with Mr. Lavallee.

[109] While I have accepted Ms. Moggy's testimony with respect to Mr. Lavallee's efforts in early 2016 to try and reconcile with her, I do not accept the sincerity of her response to him at that time that she was "Okay, cool" when Mr. Lavallee stated he was, "going all in" with a woman he was seeing. It is clear from the text messages from Ms. Moggy which followed that she was extremely angry with Mr. Lavallee and that her anger was also directed towards his new partner, whom she had not met. Ms. Moggy sent a derogatory message to Ms. Racey referencing Mr. Lavallee's affair with her sister that is strongly suggestive of an effort to undermine his relationship with her.

[110] As noted below, Ms. Moggy had legitimate issues with Mr. Lavallee not contributing to reasonable section 7 expenses, and she was justified in being frustrated with his intransigence. Further, it is clear her frustration was in part related to his insensitivity to the children's feelings around spending alone time with him. However, the venom in her texts during this period directed at him and his new partner go well beyond what would be reasonable in those circumstances.

[111] The children's text messages with their father during this time period were particularly telling.

[112] B. makes numerous references to financial issues and to being angry with his father for not supporting his mother more. He references his mother, "busting her butt off to have a home and food", and that his father should, "help mommy". He also tells his father that he has, "not been there for us when mommy needed help", and stated, "screw you step up and help mommy".

[113] E. demanded her father pay for the back-to-school supplies because he made, "mommy pay for a loyer [sic]", and made her take time off work to take care of the "papers" he sent her. Ms. Moggy also makes specific reference in a text at this time that the "final straw for your kids losing respect for you was the court papers."

[114] The texts also confirm what Mr. Didham testified to in that both children wanted an apology not only for themselves but for their mother, in spite of the fact that their parents have been separated for many years at this point. The fact that the children wanted an apology for their mother in the circumstances is a particular concern.

[115] The texts of the children referring to financial issues, court papers, and lawyers predates the involvement of the OCL and coincides with Mr. Lavallee's application for access in the summer of 2016.

[116] Mr. Didham and OCL counsel took the position that there was no evidence of influence by mother on the children's views and preferences. I disagree. The numerous text messages are strongly indicative of the children being exposed by their mother to her anger over financial matters and Mr. Lavallee pursuing reconciliation with her while pursuing a relationship with Ms. Racey. The only reasonable inference to be drawn from these texts by the children is that they were exposed by their mother to her anger at Mr. Lavallee, and that they took on this anger as well.

[117] Mr. Didham testified that he felt the children's views and preferences were independent largely on the basis that when he asked them if either felt influenced by their parents they said no. Mr. Didham testified to having been aware of only one instance where E. referenced financial issues related to her dance class to her father in a text, and stated that Ms. Moggy had acknowledged it was not ideal and took steps to avoid it further. It was clear in his testimony that Mr. Didham had not reviewed the numerous and concerning text messages between the parties and children. Unfortunately none of the specific text message exchanges were put to Mr. Didham during his testimony.

[118] It was unclear why Mr. Didham had not reviewed the text messages. There was no indication at trial by any party that they did not have prior notice of them. The court expects a more thorough and nuanced review by the OCL with respect to the independence of a child's views and preferences.

[119] While I accept that the children's views and preferences have been consistent and strongly held, and that their views towards their father are based to a significant degree on his rigid and insensitive approach, the evidence is also supportive of the conclusion that they have been negatively influenced by their mother by having been exposed to her anger towards him.

[120] There are also concerns with Ms. Moggy's approach to the issue of counselling for the children and their father.

[121] Mr. Lavallee requested in a text to Ms. Moggy on June 23, 2016 that he would like to take the children for counselling and asked that she consent for E. and also participate herself. Her response was dismissive and that she and the kids would be too busy.

[122] This was unfortunate and a missed opportunity since Mr. Didham testified that while E. was not amenable to counselling by the time of his involvement in late 2016, she apparently had been previously. Had there been counselling intervention for the family in June 2016 this matter may not have deteriorated as badly as it has.

[123] Ms. Moggy testified that she had already taken B. for counselling and that it was initiated to address the difficulties he was having because of the missed visits with his father. I do not accept that this is why the counselling for B. was initiated at Homewood Health in February 2016. The records for the first counselling appointment on February 3, 2016 indicate that the primary issue was to help B. cope with a medical diagnosis.

[124] The record outlines that, "B. was diagnosed with "non-clinical OCD" at the age of nine. B. is now 11 years of age and is in grade 6 and is struggling with issues related to the compulsive aspects of his diagnosis. Ms. Moggy would like her son to learn and understand more about his diagnosis and strategies to help them better control some of his symptoms." The goals agreed-upon at the first session were to assist B. with strategies to deal with the obsessive/compulsive behaviours, and with relaxation and mindfulness strategies.

[125] There was no mention in the records for the first session, which outlined the issues and goals, of any concerns between B. and his father, or that this was the reason for the referral.

[126] The record outlines that the next sessions were aimed at assisting B. with understanding and coping with obsessive/compulsive behaviours. The only reference to his father came in the last session on June 20, 2016 when the records states:

"B. discussed his feelings about his dad's new relationship with a woman and three children. He was able to discuss his feelings of anger, sadness, and rejection. He has been able to articulate his feelings to his dad which was apparently not received well. Discussed the importance of talking about feelings and we discussed different ways for expression through words, arts and physical activity. His mom feels proud of him for being able to talk more openly and feel [sic] that their communication has improved."

[127] By this time there were serious difficulties in the relationship between Mr. Lavallee and the children and would have been the appropriate time to attempt the family counselling that Mr. Lavallee suggested. Ms. Moggy's dismissive response to Mr. Lavallee's request for counselling in June 2016 was not responsible or child focused.

[128] Overall both parents of behaved inappropriately at times which have had the combined effect, in my view, of creating the current circumstances of the complete estrangement of the children from their father. Mr. Lavallee made a number of poor choices, none of which on their own seems sufficient to estrange two children from a loving father, however, together have had the cumulative effect when combined with Ms. Moggy's negative influence, of effectively terminating the parent/child relationship.

[129] Ms. Moggy does not oppose the order for access as long as it is subject to the wishes of the children. The OCL also supports that access be subject to the wishes of the children, based on the views and preferences they have repeatedly expressed.

[130] In Decaen v. Decaen, 2013 ONCA 218, the Court of Appeal stated that in assessing the significance of a child's wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child's point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, "The Voice of Children in Canadian Family Law Cases", (2005), 24 C.F.L.Q. 221.

[131] In the case of Kincl v. Malkova, 2008 ONCA 524, a 14-year-old child was not forced to see her father, where there had been no contact for three years. However, the court should not allow the comments of the child to be the sole basis of the judgment while disregarding other evidence of what may actually be in the child's best interests. Ultimately the weight to be attached to an expression of preference depends on the facts and is a function of age, intelligence, apparent maturity, and the ability of the child to articulate a view. Stefureak v. Chambers, [2004] O.J. No. 4253.

[132] In the case of Darby v. Darby, where a 10-year-old child was forced to have access despite a three-year separation and a strong wish not to, the court stated:

"the child's best interests in this case require that C.J. have a relationship with both parents in order to develop into a healthy adult. If he is not given access to his father his fear and anger will fester in a virtual vacuum. Or worse, it will continue to be fuelled and exacerbated by the attitudes of his mother and her allies towards the respondent. C.J. needs to be given the opportunity to know his father for what he really is, apart from what C.J. has heard about him from his mother and others, and, beyond what he remembers from the hostile pre-separation home environment."

[133] The child's wishes are given less weight where one parent has undermined the relationship with the other parent. Pettenuzzo-Deschene v. Deschene, [2007] O.J. No. 362; A.G.L. v. K.B.D., [2009] O.J. No. 160; Tock v. Tock, [2006] O.J. No. 5324, at paras. 121-123; O. (C.) v. O. (D.), 2010 ONSC 6328, at para. 16; Decaen v. Decaen, 2013 ONCA 218.

[134] As a practical matter, older children will make their own residential choice. Supple v. Cashman, 2014 ONSC 3581, 45 R.F.L. (7th) 273; Ladisa v. Ladisa, 11 R.F.L. (6th) 50; N.L. v. R.R.M., 2016 ONCA 915.

[135] Justice Zisman in Kavaner v. Jancsurak, 2012 ONCJ 543 followed Justice Abella's comments at paragraphs 87, 88 and 92:

[87]…In some cases, courts will inevitably be so convinced of a child's maturity that the principles of welfare and autonomy will collapse together and the child's wishes will become the controlling factor. If, after a careful and sophisticated analysis of the young person's ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seem to me necessarily to follow that the adolescent's views ought to be represented….

[88] As L'Heureux-Dubé J. said in Young v. Young, [1993] 4 S.C.R. 3, "courts must be directed to create or support the conditions which are most conducive to the flourishing of the child " (p. 65 (emphasis added))… When applied to adolescents, therefore, the "best interests" standard must be interpreted in a way that reflects and addresses an adolescent's evolving capacities for autonomous decision making. It is not only an option for the court to treat the child's views as an increasingly determinative factor as his or her maturity increases, it is, by definition, in a child's best interests to respect and promote his or her autonomy to the extent that his or her maturity dictates…

[92] The statutory factors reflect decades of careful study into children's needs and how the law can best meet them. We have come, with time, to understand the significance of so many relevant considerations which had been previously hidden behind formulaic solutions like "the tender years doctrine". With our evolving understanding has come the recognition that the quality of decision making about a child is enhanced by input from that child. The extent to which that input affects the "best interests" assessment is as variable as the child's circumstances, but one thing that can be said with certainty is that the input becomes increasingly determinative as the child matures…

[136] Ms. Gordon provided two cases in support of the proposition that the wishes of the children regarding access should be respected in that any access should be subject to their wishes.

[137] The case of Demelo v. Demelo, [2015] O.J. No. 4613 (OCA), was an appeal from a summary judgment decision awarding mother custody with access to the father at the discretion of the children who were 15 and 13. In dismissing father's appeal the Court of Appeal determined that the motions judge had applied the appropriate criteria in determining the children's best interests and that:

12. … court-constructed access arrangements should not be imposed on teenage children who have repeatedly confirmed that they do not wish contact with a noncustodial parent and that they wish to maintain existing custodial and access arrangements.

13. Having considered the relevant evidence, the motion judge concluded that it was in the best interests of the children that sole custody be granted to the mother and that forcing access with the father against the wishes of the children "would be counterproductive, detrimental to their emotional well-being and likely futile in any event".

[138] The Court of Appeal concluded that the evidence overwhelmingly supported the conclusions reached by the motions judge who accepted that, on the basis of the evidence from an OCL clinical investigator and a "reconciliation therapist" who saw the children for several sessions and provided a report, that there was no evidence the children had been alienated by their mother's behaviours.

[139] Ms. Gordon also provided the case of Fraser v. Logan, 2013 ONCA 93, [2013] O.J. 625 (OCA), which confirmed the motion judge's order that access by children who are almost 17 and 14 be pursuant to their wishes. The court concluded that the children's best interest required that their wishes be given very significant weight. The Court of Appeal also agreed with the motion judge that it was in the best interest of both children that they continue to have a meaningful relationship with her father. It further held that the relationship should not be impeded but rather encouraged by mother, however, the motion judge was correct that the best interests of the children were served by an access order in accordance with their wishes.

[140] E. has just turned 12 and B. turned 14 in May of this year. They have not seen their father for over 2 years. Mr. Didham testified that he felt B. presented as thoughtful, intelligent and clear and E. was expressive and consistent in her presentation.

[141] The evidence was clear they both feel very strongly with respect to their views and they have remained consistent in this regard. Their views and preferences have been expressed over a considerable period of time, and if anything their feelings have become more adamant over time, particularly after Mr. Lavallee's ill-advised approach to the apology meeting.

[142] The difficulty with respect to the weight to be accorded to their views and preferences is the issue of the negative influence by Ms. Moggy. The case of Demelo is distinguishable on the basis that I have found that the children's estrangement from their father is the result of inappropriate behaviours by both parents.

[143] However, the children's strongly held views and preferences are not wholly without foundation or entirely the result of that negative influence. Their father has, and continues, to behave in a rigid and insensitive manner regarding the children's feelings in a way that has significantly contributed to their views and preferences.

[144] The evidence of their views and preferences from the OCL, from B.'s final counselling session, and as expressed in their own text messages clearly illustrates children who were missing their father and felt deeply saddened and rejected. These feelings gave way to anger over time when their feelings were not being heard by their father.

[145] Overall, the children's views and preferences should be accorded some weight in spite of the negative influence of Ms. Moggy given their ages, the strength of their views and how long they have expressed them, and that their views are based in part on legitimate feelings of hurt and rejection.

[146] To his credit Mr. Lavallee is not seeking an order to enforce access. In the present circumstances to impose access would be potentially emotionally damaging and likely futile in any event. This conclusion is further supported by Mr. Lavallee's continuing lack of insight into his own actions, who even with the benefit of hindsight remained strongly of the view that he had done nothing wrong and would not have done anything differently. On the basis of these considerations, the children's views and preferences should be respected in that any access be subject to their wishes.

[147] The idea of an apology meeting as recommended by the OCL may have been appropriate, however, both parents should have participated and taken responsibility for their own part in the unfortunate circumstances of this case.

[148] Mr. Lavallee seeks an order for counselling involving himself and the children. Ms. Moggy testified that she would be supportive of counselling for the children at this time if it was done in a, "safe way" and the children were willing to go. OCL counsel was clear the children were not supportive of counselling with their father at this time. Given the behaviour of both parents as I have found it, this is not surprising. The issue is what, if any, intervention would be in their best interest at this time given the current circumstances.

[149] Courts have ordered parents to obtain counseling as an incident of custody or access: Kozachok v. Mangaw, 2007 CarswellOnt 1069; Snih v. Snih, 2007 CarswellOnt 3715; Abrego v. Moniz, 2006 ONCJ 500; Spencer v. Beier, 2015 ONSC 7611.

[150] Counseling is more likely to be ordered for children: C. (A.S.) v. C. (S.), 2008 CarswellMan 190; Islam v. Rahman, 2009 CarswellOnt 3280. In Sickinger v. Sickinger, 2009 CarswellOnt 3152, affirmed by 2009 CarswellOnt 7552 (CA), the mother was ordered to terminate counseling for the children with a specific counselor.

[151] This court has the authority to order reunification counselling. Testani v. Houghton, 2016 ONSC 5827. At paragraph 18 the court stated the following:

[18] In summary then,

1. The court may order reunification therapy. That jurisdiction arises from the provisions of sections 24 (2) and 28 (1) (b) and (c) (viii) of the Children's Law Reform Act.

2. Such orders are to be made sparingly.

3. There must be compelling evidence that the therapy will be beneficial.

4. The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is expected.

5. Resistance to therapy is an important but it is not the determining factor whether such an order should be made.

6. Where a clinical investigation or an assessment is underway, no order should be made pending their conclusion.

7. Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.

[152] Unfortunately Mr. Lavallee has not provided a specific or detailed proposal for the counselling he seeks.

[153] Having said this permitting the children to maintain a highly negative view of their father in the circumstances of both parents' actions is not in their best interests. To permit the children's feelings towards their father to remain unaddressed in a vacuum of their mother's attitude and influence is not in their best interests in the short or long term.

[154] I note in particular the reasons of Justice J.C. Murray in the case of Jackson v. Jackson, [2008] 50 RFL (6th) 149, paragraphs 7-25 which highlight the toxic effect of parental conflict on children. Numerous studies demonstrate the significant negative impact parental conflict has on children which continues in both the short and long term and is a major source of harm to children.

[155] The court has the authority under section 28 of the Children's Law Reform Act to order counselling for the children in spite of their resistance, if it is in their best interests to do so. Whether either B. or E. will be required to attend counselling will be based on the particulars of the proposed plan, and on whether there is evidence that Mr. Lavallee has gained sufficient insight into his actions.

[156] While I have insufficient evidence before me at this time to make a specific order for counselling the parties are strongly encouraged to set aside their personal differences and carefully reflect on their own actions and to work together to develop a joint plan to assist the children working through their feelings so they have a realistic possibility of re-establishing a relationship with their father. The parties may also consider a joint meeting with the children where they each acknowledge their part in this situation and to present their plan for moving forward.

[157] If the parties are not able to agree, Mr. Lavallee shall provide a detailed proposal to Ms. Moggy who will be required to respond to it in writing within 30 days of receipt. Any counsellor involved shall be provided a copy of these Reasons.

[158] In spite of the current acrimony, there is a history of successful co-parenting and the children's best interests would be served by the parties addressing the personal issues between them. The children deserve an opportunity to reestablish a relationship with their father based on a more balanced view of the circumstances.

[159] If the parties are not able to agree on a plan, including a counselling plan, the matter may be returned in front of me on a motion with evidence in support of the specific plan sought. I am hopeful, however, in spite of the serious difficulties between the parties that this will not be necessary. Both parties presented at trial as emotionally drained by this lengthy proceeding, and that both sincerely wished that matters had not deteriorated as they did.

[160] The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of the children. Having considered all the factors outlined herein, and in s.24 (2) of the CLRA, the best interests of the children support an order that the access arrangements be subject to their wishes and that the parties work towards a counselling plan together, failing which the court will consider, on motion, either party's detailed proposal.

Child Support and Section 7 Expenses

[161] Ms. Moggy acknowledges that the spousal support payments were made, and that child support payments are up-to-date pursuant to the parties' Separation Agreements, however, takes the position that Mr. Lavallee has not provided the annual disclosure required or contributed to all the section 7 expenses she has incurred. She seeks child support and section 7 expenses retroactively to 2015.

[162] I note that under the 2011 Child Support Guidelines $1200 in child support for two children would be payable on an income of $82,300.

[163] The parties' incomes pursuant to their Notices of Assessment are as follows:

	Mr. Lavallee	Ms. Moggy
2013	$89,830	$21,450
2014	$96,215	$21,570
2015	$93,984	$26,623
2016	$92,512.37	$18,967
2017	$76,254.01	$10,359

[164] Mr. Lavallee was off work starting at some point in 2017 as a result of the back injury. His total 2017 income is derived from WSIB benefits of $47,998.08, grossed up by 20%, plus $18,896.31 from income from Toyota Manufacturing, presumably from before he was off work from the injury.

[165] This is the appropriate way to treat the WSIB benefits for child support purposes. Worker's Compensation benefits, although not treated as income for tax purposes, have been held to constitute income for the purposes of the calculation of child support. In the case of Dahlgren v. Hodgson, 1999 ABCA 23, the Alberta Court of Appeal stated the following:

"[5] More importantly, when dealing with any form of benefits or attributed benefits received by a parent that are not taxable for income tax purposes, it is essential that any such amount be grossed-up to take into account what it would be if it had been taxed. The purpose in doing so as to ensure that the apportionment of responsibility between the parents for child support is based on the same approach for both parents."

[166] Unfortunately, little evidence of current income for either party was provided or sought. With respect ongoing support the applicant stated he was receiving WSIB benefits of $2187.77 biweekly. This totals $56,880.72, and grossed up by 20% is the equivalent of $68,256.86 of income for child support purposes. This produces child support payments for two children of $1040 per month. It was left unclear in the evidence when or if he would be returning to work. However when making his closing submissions on August 24, 2018 Mr. Lavallee indicated he had just gotten off the night shift which suggests he is back at work. No other information was provided and this comment was not followed up on by counsel. The only evidence this court has is the WSIB income, however, the child support should be adjusted accordingly to when he returned to work.

[167] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:

1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.

2. The conduct of the payor parent.

3. The circumstances of the child.

4. The hardship that the retroactive award may entail.

[168] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.

[169] Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S. par. 97).

[170] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).

[171] The certainty offered by an agreement does not absolve parents of the responsibility to continually ensure that their children receive the appropriate amount of support (D.B.S., par. 64).

[172] A parent should not have the impression the child support agreements are set in stone. Even where an agreement does not provide for automatic disclosure, variation or review, parents must understand that it is based upon a specific snapshot of circumstances which existed at the time the agreement was made. For this reason, there is always the possibility that agreements may be varied when these underlying circumstances change (D.B.S., par. 64).

[173] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121).

[174] Court orders and separation agreements can provide for explicit or implicit disclosure obligations. However, the court in Santelli v. Russo, 2009 CarswellOnt 1349, held that an annual disclosure clause in an order or agreement is not effective notice.

[175] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. (D.B.S. par. 123).

[176] Ms. Moggy is entitled to a variation of child support back to August 2016, the date of her claim before the court for a variation of child support. The issue is whether it is appropriate in the circumstances to permit the retroactive claim back to January 2015, or some point since then.

[177] Mr. Lavallee acknowledges that he was under an obligation pursuant to the second Separation Agreement to provide annual disclosure and that he did not. He testified that a request for his financial disclosure was never made. Ms. Moggy testified that she requested the financial disclosure but it was never provided until Mr. Lavallee was required to when this proceeding commenced.

[178] The text messages filed in evidence confirm that there were some discussions about section 7 expenses in early 2016 but there was no indication of any written request for the financial disclosure before this proceeding. Ms. Moggy acknowledged in her testimony in chief that she never asked for more child support from Mr. Lavallee because she trusted him about his income.

[179] As outlined above, and annual disclosure clause in an agreement/order is not effective notice. However, I accept that Ms. Moggy had requested financial disclosure from Mr. Lavallee at some point prior to this litigation in early 2016 and that it was not provided. It is reasonable in the circumstances that she would have made this request. The parties were clearly at odds in early 2016 about section 7 expenses and there were text messages between the parties at that time disagreeing on the costs of E.'s dance.

[180] As indicated the child support of $1200 being paid would have required an income of $82,300, and Mr. Lavallee's income was significantly higher by 2016 and would have required him to pay $1324 per month.

[181] This is not a case where the payee made a request for disclosure and then failed to take further steps for a prolonged period. Ms. Moggy requested this information, it was not provided, and she made a claim for child support in August 2016.

[182] Neither is this a case where the actions of Mr. Lavallee amounts to entirely blameworthy conduct. Mr. Lavallee's payment obligations under the Separation Agreement were met and he continued to pay child support pursuant to the agreement up to trial when it was clear starting in 2017 that his income had substantially dropped as a result of an injury at work and being placed on WSIB benefits. On this particular issue he has behaved reasonably.

[183] However, while a failure to inform of changes in income may not necessarily amount to blameworthy conduct, the payor cannot mislead the recipient into believing the child support obligations are being met when they are not. Further up to and including 2016 Mr. Lavallee's income had increased significantly and he ought to have known his obligation for child support was not being met. Further, as outlined below, starting in 2016 he was not contributing to any section 7 expenses incurred by Ms. Moggy.

[184] The evidence did not suggest that the circumstances of the children suffered particularly. Mr. Lavallee was not missing his regular child support payments, and was in fact overpaying in 2017, and Ms. Moggy was working hard to ensure the children were in all the programming that they were.

[185] Any hardship from a retroactive adjustment on Mr. Lavallee can be mitigated by a repayment schedule based on his current financial circumstances.

[186] Overall, the Separation Agreement contained an explicit disclosure obligation that was not met by Mr. Lavallee, and I have accepted that Ms. Moggy provided effective notice of her claim to adjust child support in early 2016 when she requested financial disclosure. In all the circumstances the appropriate commencement date for the retroactive adjustment of child support is January 1, 2016.

[187] For 2016 the applicant earned $92,512.37 and should have been paying $1324 per month. He paid $1200 per month which leaves arrears owing for 2016 of $1488.

[188] For 2017 the applicant's total income for child support purposes was $76,254.01 and he should've paid $1158 per month in child support. He paid $1200 per month which results in an overpayment of $504.

[189] In 2018 up to July 31 the respondent should have paid $1040 per month on his income of $68,256.86 (grossed up WSIB income). He paid $1200 per month which results in an overpayment of $1120.

[190] Child support recalculated from January 1, 2016 up to July 31, 2018 results in an overpayment of $136.

Section 7 Expenses

[191] With respect to section 7 claims the parties had an explicit written agreement to share proportionally these costs. Mr. Lavallee acknowledged contributing to dance for E. and 2015 and to no other expenses since that time.

[192] The evidence is clear in the text messages that Ms. Moggy had raised the issue of the cost of E.'s dance for 2016 and that Mr. Lavallee was not prepared to contribute to that or any other expense, in spite of the fact that in 2016 his income was around $10,000 higher at the time than what he was paying child support on. Mr. Lavallee acknowledged in his testimony that Ms. Moggy was asking for his contribution but he refused as he felt the amounts were excessive given his income.

[193] I disagree that the section 7 expenses claimed for the children were excessive. The claims relate to programs at the YMCA, dance for E., and judo for both children. The amounts claimed by Ms. Moggy were reasonable in the circumstances of the family and have been substantiated by receipts confirming that she paid the totals in Exhibit 1 Tab 4.

[194] For 2015 and 2016, section 7 expenses total $734.05 and Mr. Lavallee's proportional share based on their incomes at the time amounts to $643.63, and I accept the respondent's calculations found at Exhibit 1 Tab 4 (a) and (b).

[195] The issue of the proportional share for section 7 expenses for 2017 and on an ongoing basis is less straightforward. The evidence provided by Ms. Moggy with respect to her income was less than clear. According to Ms. Moggy, her income dropped significantly in 2017 in her Notice of Assessment because of having a new accountant who included significantly more write-offs from her business income. Her Notice of Assessment for 2017 outlined income of $10,359. She submits that for 2017 and on an ongoing basis that her income for the purpose of sharing section 7 expenses should reflect this amount.

[196] She testified that her total income is derived from self-employment. She operates a home daycare through Oxford Community Daycare, and now also has a personal training business. She testified in cross-examination that she works 14 to 15 hours a day and has six children in her daycare before and after school from 5:30 AM to 4:30 PM, and that she serves personal training clients in between and after school.

[197] She further testified that she is self-supporting, owns her own home, which she purchased in 2016, and a 2018 GMC Sierra truck, and that overall she has no financial issues. She felt her hard work would result in her income increasing this year.

[198] Neither party provided updated financial statements in advance of trial and Ms. Moggy relied on her financial statement sworn November 29, 2016. At that time she only had her daycare income which she reported was $2181.38 per month before expenses, and $861.88 after expenses. Attached to her financial statement is what she referred to as an Income/Expense sheet for her daycare business. She expensed portions of her mortgage and home expenses and $800 per month in groceries. When questioned in cross-examination about the expenses, and the grocery expenses in particular, she was unable to provide any further particulars.

[199] Ms. Moggy's 2017 tax return was filed at Exhibit 1 Tab 3(e) which outlined similar totals for business income and expenses.

[200] Based on the evidence, I am not convinced that Ms. Moggy's 2017 Notice of Assessment income of $10,359 is the appropriate sum for calculating section 7 contributions.

[201] The particulars she provided of her daycare income and expenses from 2016 and from her tax return in 2017 were inadequate to evaluate her income for child support purposes. She testified she started a new personal training business in 2017 and is working long hours to grow the business. She provided no particulars of any income or expenses with respect to this portion of her self-employment income and no particulars were provided for any of her 2018 income.

[202] Further, it was difficult to reconcile her very modest income with the fact that she purchased her own home and drives a 2018 GMC Sierra truck. She provided little information on her current income and expenses and how she is able to support herself and the children on her modest income, even with the child support and child tax credit she receives.

[203] A self-employed person has the onus of demonstrating clearly the basis of their gross and net income. This includes demonstrating that the deductions from gross income should reasonably be taken into account in the deduction of income for support purposes. Whelan v. O'Connor.

[204] A self-employed person has the inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the other party and the court can draw conclusions and the amount of support can be established. Meade v. Meade, 31 RFL 5th 88.

[205] A party must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v. Carriere, 2016 ONSC 4719. The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines. Smith v. Pellegrini, [2008] O.J. No. 3616; Maimone v. Maimone, [2009] O.J. No. 2140.

[206] The onus is on Ms. Moggy to support her claim for contribution towards section 7 expenses by providing a full and complete financial picture. She has not done so. She chose to provide no evidence by way of financial records or business statements, there was scant information on the number of clients, and few particulars of revenues and deductions for either of her businesses.

[207] While I accept that the section 7 expenses she has claimed are reasonable and these amounts were supported by the evidence, I am not of the view that her income for calculating the parties' contributions should be $10,539.

[208] She testified she works 14 to 15 hours a day on her businesses, however, she has not provided a clear picture of her financial circumstances and chose not to provide the full particulars of her business income as required for determination of her income under the Child Support Guidelines.

[209] Ms. Moggy presented as a hard-working and resourceful person who confirmed she had no personal or health issues which impacted her ability to work. An adverse inference concerning her income for child support purposes is appropriate.

[210] In all the circumstances it is reasonable to impute an income on her for 2017/2018 of $30,000 per year for the calculation of the parties' contributions towards section 7 expenses. This is roughly a full time, minimum wage income which, given her work and personal history, is more reflective of her personal capabilities.

[211] The total section 7 claims for 2017, which were verified by receipts, was $2704.50. This includes the YMCA memberships for both children, dance for E., and judo for both children.

[212] Based on Mr. Lavallee's incomes noted above for 2017 and 2018, and Ms. Moggy's income for child support purposes imputed at $30,000 a year for 2017 and 2018, the proportional share shall be as follows:

2017: 72% for Mr. Lavallee and 28% for Ms. Moggy (on incomes of $76,254 and $30,000)

2018: 70% for Mr. Lavallee and 30% for Ms. Moggy (on incomes of $68,256.86 and $30,000)

[213] Therefore, for 2017 Mr. Lavallee's share of section 7 expenses shall be $1947.24 (72% of $2704.50).

[214] As a result, the total arrears of section 7 expenses owed by Mr. Lavallee is $2590.87 ($1947.24 plus $643.63), which leaves a total of $2454.87 owing when the overpayment of $136 for child support is deducted.

[215] The parties agreed going forward that section 7 expenses shall be shared proportional to their incomes and based on the agreement of the parties in advance.

Final Order

[216] On the basis of all the considerations outlined herein, there shall be a final order as follows:

1. Commencing August 1, 2018 child support payable by the applicant for two children in the amount of $1040 on an estimated income of $68,256.86 (comprised of grossed up WSIB benefits). This amount shall be adjusted to when Mr. Lavallee returns to his employment and he shall provide disclosure forthwith upon returning to work.

2. Arrears in child support up to July 31, 2018 and section 7 expenses up to December 31, 2017 owing by the applicant to the respondent are fixed in the amount of $2454.87 and repayable at a rate of $350 per month until paid in full.

3. The parties to proportionally share in section 7 expenses with 70% payable by Mr. Lavallee and 30% payable by Ms. Moggy, based on incomes of $68,256.86 for Mr. Lavallee and imputed income of $30,000 for Ms. Moggy.

4. The parties shall consent to section 7 expenses in advance, with such consent not being unreasonably withheld, with payment to be provided within 30 days from when the receipt is provided.

5. Access by Mr. Lavallee to the children shall be, subject to the wishes of the children, as follows:

   a. alternate weekends from Friday to Sunday;

   b. two evenings per week as agreed between the parties;

   c. other times as agreed between the parties.

6. The respondent shall actively encourage and facilitate communication between the children and the applicant.

7. The parties will attempt to work together to develop counselling plan to support the children reestablishing a relationship with the applicant. The applicant will provide in writing to the respondent a detailed proposal for counselling, with the respondent providing her response in writing within 30 days of receipt.

8. If the parties are unable to agree on the particulars of the counselling plan the matter may be returned before the court on motion for direction with evidence outlining the particulars of the proposed plan.

9. Any counselling plan shall include that the counsellor is provided with a copy of these Reasons.

If the parties are not in agreement on the issue of costs a return date can be arranged with the trial coordinator for submissions on that issue.

Released: October 9, 2018

Signed: "Justice S.E.J. Paull"